ICC Prosecutor Symposium: The ICC Assembly of States Parties’ Selection Process for the Third ICC Prosecutor

[Charles C. Jalloh is Professor of Law, Florida International University and Member, International Law Commission. He is Chair of the Panel of Experts on the Election of the Prosecutor. Sabine Nölke is the former Ambassador of Canada to the Kingdom of the Netherlands (currently Chargée d’affaires of Canada to Ireland) and Chair of the Committee on the Election of the Prosecutor. The views expressed by the authors are personal and not attributable to any entities with which they may be affiliated.  This essay, the final in the joint Justice in Conflict/Opinio Juris symposium on the ICC Prosecutor, is dedicated to the memory of Felipe Michelini, Chair of the Board of Directors of the ICC’s Trust Fund for Victims, who passed away following a tragic accident as this piece was being finalized.]

Introduction

As Chairs of the ICC Assembly of States Parties Committee and Panel of Experts on the Election of the Prosecutor, we have read with interest the thoughtful articles in the recent symposium on “The Next ICC Prosecutor.” As the conveners rightly stressed in their introduction, “the choice of the next Prosecutor will have a profound effect on how well – or how poorly – the Court functions for the next eight years. Simply put: the ASP has to get this right.” We could not agree more. And, judging by the concrete actions the ASP has taken to establish a competency-based search process for the ICC’s crucial third Prosecutor, the States Parties to the Rome Statute also want to “get this right.”

There were several thoughtful contributions to the symposium. However, even though we did not agree with some of the articles, little was said about the innovative process that the ASP put in place to assist in ensuring that competence, rather than politics, guides the process of identifying the best candidate to succeed to the world’s most important prosecutorial position in June 2021. A review of what is actually being done may be of assistance to those ICC watchers outside The Hague who may not have followed the ASP-mandated process in detail.

The Establishment of the Committee on the Election of the Prosecutor and the Panel of Experts

Deliberations on the outlines of a competency-based selection process for the next prosecutor began in the ASP Bureau under President O-Gon Kwon in July 2018. Following rounds of consultations between Bureau members and States Parties, a formal decision containing the Terms of Reference for two ASP created bodies was adopted on 11 April 2019. They mandated the establishment of two bodies: 1) a Committee on the Election of the Prosecutor (“CEP”); and 2) a Panel of Experts (“PoE”).

Membership of the Committee and the Panel of Experts on the Election of the Prosecutor

The ASP, following nomination by regional groups and based on consensus, appointed the members of the two bodies early last summer. The CEP membership was agreed by the States Parties and the ASP on 6 June 2019, as follows:

1. Ambassador Marcin Czepelak (Poland);
2. Deputy Permanent Representative Lamin Faati (The Gambia);
3. Ambassador Andreas Mavroyiannis (Cyprus), subsequently named Vice-Chair by the CEP;
4. Ambassador Sabine Nölke (Canada), subsequently named Chair by the CEP;
5. Ambassador Mario Oyarzábal (Argentina).

The agreement on the PoE followed on 19 June 2019, with the following members, again nominated by the regional groups and agreed by the Bureau:

1. Mr. Francisco Cox Vial (Chile);
2. Ms. Aurélia Devos (France);
3. Prof. Charles C. Jalloh (Sierra Leone), subsequently named Chair by the POE;
4. Mr. Motoo Noguchi (Japan);
5. Ms. Anna Richterova (Czech Republic).

The positions are not remunerated, and although basic travel expenses are offered for in person meetings, participation in the CEP and the PoE constitute pro bono service to the ICC.

The Role of the Committee and Panel of Experts on the Election of the Prosecutor

The CEP plays the lead role. It was entrusted, under paragraph 9 of the Terms of Reference, with the responsibility to “facilitate the nomination and election of the next Prosecutor.” It is representative of the five regional groups of the ASP. Crucially, the members “serve in an individual and independent capacity,” not as representatives of their governments or other interests. Indeed, they are not allowed to “seek, or act on, instructions from any external source.” (Paragraph 4).  The CEP’s role is similar, not identical, to that of the Search Committee which the ASP created in the 2011 search for the ICC’s second prosecutor. Improvements from the last round were incorporated.

The PoE is required “to assist the Committee in carrying out its mandate.” The membership of the POE, which is comprised of independent experts with “extensive national or international criminal investigation, prosecution or judicial experience,” is also drawn from each of the five regional groups. (Paragraphs 7, 15). The creation of the POE represents the most “significant innovation”, and aims at ensuring that only the most qualified professionals are presented to States Parties for (s)election.  Members also act in their private capacity. While the PoE shall assist the CEP in an “advisory capacity” only (paragraph 10), the division of labor foreseen in the Terms of Reference essentially creates a rigorous two-level vetting system.

In the performance of their functions, both the CEP and the PoE are to be guided only by the applicable provisions of the Rome Statute, in particular Article 42, as well as the procedures previously agreed by the ASP for election of the prosecutor in Resolution ICC-ASP/1/Res. 2, as amended, as well as the “best interests of the Court and the [ASP].” Members of both bodies are also bound by confidentiality and conflict of interest rules. (Paragraphs 1, 9, 18, 24).

One of the primary objectives of the CEP’s and POE’s mandates and the timeline presented by the ASP President is to avoid premature nominations such as States Parties deciding to nominate a candidate for political reasons and without prior vetting of the candidate’s competencies, possibly leading to an election based on considerations other than merit. The CEP was thus mandated to advertise a vacancy and receive the applications directly from “individuals”, that is the applicants themselves, rather than their States of nationality. Nominations and endorsements by States Parties or other entities, while permissible under the Rome Statute, were strongly discouraged at this preliminary stage. (Paragraph 13).

The PoE was tasked with preparing a vacancy announcement and recommending it to the CEP, which in turn reviewed and submitted it to the ASP Bureau for approval. The PoE was also to paper-sift the applications; recommend a long list of candidates to the CEP; and prepares and participates in the competency-based interviews. Essentially, the PoE carries out the preliminary assessment to determine which applicants appear to be “the most highly qualified candidates.” (Paragraphs 12, 15-16).  The CEP reviewed the long list and the assessments of the PoE in a separate meeting, creating the “final” long list of candidates to be interviewed.

In practice, though being road-tested for the first time, the two bodies we respectively have the privilege of chairing work independently, with the support of the ASP Secretariat. We coordinate with and complement each other, effectively carrying out two separate and independent assessments of the applicant pool, with the CEP’s work being – critically – informed and advised by that of the experts. This has helped to ensure that the best applicants found are moved to the second stage. 

The Committee, per its mandate, has reported its progress to the ASP via the Bureau.  These reports, while maintaining the confidentiality of individual applicants (paragraphs 23 and 24), are publicly available on the ASP website. This transparency is a vital part of the process (paragraph 22).

The Rome Statute and the ASP Decisions as Basis for the Vacancy Announcement

The starting point for the Vacancy Announcement and the competencies set out therein was the Rome Statute itself. Article 34 of the ICC Statute establishes the Office of the Prosecutor (OTP) as one of the four principal organs of the Court, requiring it to act independently and not seek or act on instructions from any other organ or other external source. The role of the OTP is mainly set out in Article 42, though Articles 15, 53 and 54 are also relevant. The OTP is entrusted with the responsibility “for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.” (Article 42(1)). The Prosecutor, who heads the OTP, and the Deputy Prosecutor who assists him or her, “shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” (Article 42(3)). Naturally, all these general statutory requirements were included in the vacancy, along with an ASP-mandated confidentiality assurance for applicants.

Second, the PoE draft vacancy included additional requirements proposed by the ASP in the terms of reference: “experience in the prosecution of complex criminal cases; demonstrated management experience; in-depth knowledge of national or international criminal law and public international law.” (Paragraph 12). In this regard, effort was also made to reflect the experience of the past two decades with successful and unsuccessful prosecutions, as well as the publicly discussed challenges faced by the OTP in carrying out effective investigations and prosecutions. While the success of the Court as such should not be measured by the number of convictions or acquittals, the reality is that several cases have been dismissed or even collapsed, due to investigative or evidentiary related lapses noted by both the judiciary and Court observers and experts including during the Symposium. This best explains the emphasis in Section 6 of the Vacancy Announcement that the next prosecutor must have “extensive and proven practical experience, in particular as a prosecutor, in the investigations, trials and appeals of complex criminal cases.”

The technical competencies of a prosecutor, stressed also in other parts of the vacancy, are not however presented to the exclusion of other, equally important, excellent leadership and personal qualities required for success in this important position. The qualifications and experience required by the vacancy thus include a proven track record of success including sound judgment and decision-making, including energy and tact and demonstrated management and leadership experience; proven ability to identify key issues in complex and sensitive situations and take appropriate decisions; integrity including high moral character and impeccable personal and professional integrity; proven record of independence and impartiality and commitment to upholding justice, accountability and human rights; and ensuring gender equality; respect for diversity in all its forms, including gender, race, religion, nationality, sexual orientation, disability, etc.; strategic awareness, including the ability to identify strategic issues, opportunities and risks; leadership;  financial and managerial competencies; communication skills; language abilities; and other competencies. (Sections 3-4, 6 of Vacancy Announcement). 

The requirement for the successful candidate to be of “high moral character”, as noted above, is set out in the Rome Statute.  While the Terms of Reference for the CEP and the POE do not include provisions for a vetting process, the issue will be expressly addressed in the interview process. And, as some of the Symposium participants have noted, the CEP engaged directly with civil society on it. The PoE had also encouraged such engagement to enhance vetting, transparency and public confidence in the process. The subsequent nomination period and discussions among States Parties and civil society will offer further opportunities to ensure that the candidate ultimately selected for the position possesses the qualities mandated in the Rome Statute.

The Applicant Pool, Vetting Process and the Long List

In a publicly available interim report (and addendum) to the ASP, the CEP confirmed that 144 applications were received. A total of 44 of those applications were from female candidates and 100 from male candidates. Of those, only about approximately two-thirds (89) of the applicants submitted all the required supporting materials. This represents a roughly 60% increase over the 51 candidates considered during the 2011 search. One of the candidates was a nomination by a State Party, but in keeping with the requirement that all applicants be assessed using the same standard, the State Party was invited to encourage the applicant to apply directly. The candidate did and was thereafter considered on the same basis as all the other applicants.

The largest number of overall applications were from the Western European and Others Group (58), followed by the African Group (48); the Latin American and Caribbean Group (14); the Asian Pacific Group (13); and the Eastern European Group (11). Applications came from individuals mostly from States Parties, but there were also some from non-party States. As regards representation of the principal legal system, the CEP report to the ASP indicates that a good number of the applicants were from civil law jurisdictions (85), followed by common law jurisdictions (30) and others from mixed/other legal systems (29). 

Using the standardized format to ensure fair assessment of all the candidates who had submitted a completed application (89), the PoE in early December 2019 completed its mandated  “paper-sifting” tasks, focusing on the relevant competencies and experience, whether gained at the national or international levels; regard was also given – within the constraints of the applicant pool – to questions of gender and geographical balance and adequate representation of the principal legal systems of the world. The Panel also began preparations of interview questions. Its confidential report was forwarded to the CEP within short order thereafter.

The CEP subsequently met in New York on 20 and 21 February 2020, carrying out its own independent assessment of the applications, while taking into account the recommendations in the PoE report, and decided on a long list of 16 candidates to be interviewed. The number was justified by the candidate pool since, rightly so, no particular range was fixed by the ASP, unlike for the short-list stage. One candidate has since withdrawn, leaving 15 to be interviewed – double the number of (8) persons interviewed during the 2011 prosecutor elections. 

The CEP also agreed on the modalities for the competency-based interviews, although both their nature (initially intended to be face-to-face, now likely to be conducted via video conference) and timing have since had to be revised due to the COVID-19 pandemic.   Both CEP and POE members will participate in the interviews.  While the creation of the short list of 3-6 “most highly qualified” persons is mandated to the CEP, the POE will advise the CEP throughout, including by formally sharing written assessments of the candidates with the CEP. Taking the expert views into account, the CEP will prepare an unranked list, in English alphabetical order, of between 3 and 6 candidates of “the most highly qualified” persons for submission to the ASP. Any unsolicited third-party information or materials, including endorsements, received by the CEP in respect of short-listed persons will be transmitted to the President of the ASP at that time.

It is possible that logistical complications due to the COVID-19 pandemic might lead to some delays. Nonetheless, the CEP and the PoE are committed to the timely completion of the final report for transmission to the ASP Bureau and States Parties by the end of June 2020.

The Next Steps: From Short List to Nomination to Election

Once the CEP report is submitted, consistent with the Terms of Reference, the confidentiality restrictions governing the current process will be lifted, as concerns the 3-6 candidates on the short list, and the role of the PoE and CEP comes to an end. (Paragraph 23).

The selection process then moves to State Party nomination of candidates and consideration in the ASP; importantly, this process constitutes an additional round of vetting and screening of the candidates, by States and civil society. This process is expected to include public presentations and hearings of the short-listed candidates, similar to those held with shortlisted candidates in New York during the 2011 search. Consultations will be led by the ASP President, in conjunction with the Bureau, to determine whether a candidate attracts consensus of the States Parties.  In the absence of consensus, the Prosecutor will be elected pursuant to Article 42(4) of the Rome Statute by secret ballot by an absolute majority of the 123 States Parties.  Election in December 2020 should give the successful candidate a six months transition to assume the post in June 2021.

Concluding Thoughts

In our view, the ASP has established a structured, transparent and inclusive process for the election of the next prosecutor of the ICC. The establishment of both the CEP and the PoE is a testimony to States’ commitment to recruit “the most highly qualified candidate” for the post of chief prosecutor, based on objective criteria.  Any process can be improved, of course, and it is our intention to offer to provide the ASP with an informal assessment of lessons learned once the election has been completed.

In the meantime, the CEP and the PoE will continue – jointly, cooperatively and diligently – with the task of identifying, in accordance with Article 42(3) of the Rome Statute, the person from the long list with a) high moral character, b) high competence and extensive practical experience in the investigation, prosecution, trial and appeal of criminal cases, c) excellent knowledge of and fluency in at least one of the working languages of the Court and d) relevant education as well as e) substantive knowledge of the relevant bodies of criminal and international law.

At that stage, it will be incumbent upon the ASP and the ICC’s 123 States Parties – informed by the views of civil society – to ensure that the best candidate is ultimately nominated and elected as the Chief Prosecutor of the ICC, so as to ensure their commitment to the Rome Statute and the principle that those most responsible for atrocity crimes must not go unpunished.